Alison Lingane (Alison@benetech.org)
Senior Product Manager, Bookshare.Org, The Benetech Initiative
Jim Fruchterman (Jim@benetech.org)
President and CEO, The Benetech Initiative
In the United States, access to published print material for people with disabilities has been improved by the 1996 passage of the Chafee Amendment to the copyright law (17 U.S.C. § 121 ). This enables nonprofit organizations or governmental agencies to provide alternative accessible copies of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities.
The Chafee Amendment has supported access to information by people with disabilities that affect their ability to access print material, both in and outside the education setting.
Prior to passage of Chafee, any distribution of copyrighted material in specialized formats to people with disabilities could only be done after receiving explicit permission from the copyright holder. Although few publishers objected conceptually to providing permission for access for the disabled community, permissions often couldn’t be obtained or took a long time to be granted. Chafee has made it easier for qualifying governmental and nonprofit agencies to serve the needs of people with disabilities for access to books and other copyrighted print material, removing the paperwork and legal work necessary to document permissions.
The essence of the social bargain between publishers and the disability community was to provide easier access to people with disabilities while protecting the economic interests of publishers. Chafee was drawn narrowly to seal this bargain.
It is of course extremely important that organizations operating under Chafee do so with the utmost integrity and within the strict letter of the law to protect this important amendment that has provided such a big leap forward for access.
It is clear that access to books through traditional suppliers of accessible books, such as the National Library Service, American Printing House for the Blind and Recording for the Blind & Dyslexic, has become easier thanks to the Chafee Amendment. These organizations do not have to wait for the permission to create materials based on published books, and there aren’t books that are off-limits because of uncooperative publishers. The one significant exception to this is drama books, since these are explicitly excluded from Chafee.
The issue of how schools qualify as authorized entities under Chafee has not been completely settled. The Chafee definition of entities authorized to make accessible books is “a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities.” Disability student centers and special education units have interpreted this to include themselves since they have a primary mission related to disability access. This issue hasn’t been a pressing one, since most of these efforts also seem to fall under the legal concept of fair use. However, if schools expand their efforts by distributing accessible materials more widely, this might become a bigger issue. The publishing industry has expressed discomfort with educational institutions becoming republishers of accessible materials on a scale beyond individual students.
About half of the states have laws requiring publishers to provide access to books for students, with most laws focused on K-8 or K-12. One example is A.B. 422 in California that requires publishers to provide accessible digital files of textbooks to public post-secondary institutions if the student purchases the physical textbook. Other states have laws specifically targeting K-12 textbooks. Publishers must respond to each of these state laws individually, a real challenge for publishers that have active markets in all states. The laws have been met with varying degrees of success from the perspective of the educators trying to provide equal access to required course material.
The Instructional Materials Accessibility Act (IMAA) is an effort that brought together disability groups, educators, the publishing industry and other major stakeholders through the AFB Solutions Forum to create a national repository of K-12 textbooks to better serve the needs of students with print disabilities. The IMAA “is intended to improve access for blind persons, or other persons with print disabilities, to print instructional materials used in elementary and secondary schools by creating a coordinated and efficient system for acquiring and distributing such materials in the form of electronic files suitable for conversion into a variety of specialized formats that are accessible to such persons.” 
The bill was first introduced into the U.S. Congress in 2002, and recently reintroduced in 2003. If it passes, once fully implemented it will offer a tremendous leap forward for K-12 students nationwide.
Even with Chafee, it continues to be very costly to create books in accessible formats, as production essentially has to start from scratch by transcribing the book into Braille, recording it in voice, or scanning and proofreading the text. Working with publishers directly (individually or legally mandated as with the IMAA) to create a secure distribution system to qualifying individuals from original digital files would save work for everybody, while at the same time make access by people with disabilities faster, higher quality, and more comprehensive
Since the U.S. copyright law only has jurisdiction within the United States, the Chafee amendment does not address the problem that people all around the world with print-related disabilities could benefit from the efforts in a given country to create works in alternate, accessible formats.
Individual countries have different legal structures allowing for the reproduction of copyrighted material for people with disabilities. A recent development in Europe has promise for expanding access on that continent. In May of 2001, an EU Copyright Directive  was issued that states in part, “Member States may provide for exceptions or limitations to the rights provided [as described in the Directive] for ... uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability.” The Directive serves as a guideline, but is not mandatory for EU member states.
Partly in response to the Directive, the UK recently passed a law  with similarities to the Chafee Amendment that will go into effect in the spring of 2003. Nonprofits and educational institutions will be allowed to create and distribute accessible copies of books to people with visual impairments without explicit permission from the copyright holder. This exemption does not apply if an accessible format is already either commercially available from the copyright holder directly or through a licensing arrangement with a provider (such as a nonprofit organization).
Although access in specific individual countries has been moved forward by legislation like the Chafee Amendment, the problem remains that efforts within each individual country to create accessible material are being duplicated because these country-specific laws do not allow for distribution of material between countries to individuals with qualifying disabilities. The World Blind Union (WBU) and IFLA’s Section of Libraries for the Blind (SLB) have been lobbying the World Intellectual Property Organization (WIPO), the World Trade Organization (WTO), and other key international bodies to move forward the agenda of enabling access to accessible material across international borders by people with disabilities , recognizing that agreements at the international level are necessary for such changes to take place.
A more country specific approach would be for individual countries to agree to allow access by people with disabilities in other countries with materially similar copyright amendments to serve people with disabilities. Were all countries with such laws on their books today to take such a step, material created in the United States under Chafee could serve individuals in countries such as Canada, Australia, New Zealand, the UK (once their new law takes effect) and others. The reverse would also be true, that Americans with disabilities could benefit from efforts in other countries to make material available in accessible formats. Given the high cost of creating such material, reducing duplication of effort on an international basis would be a major benefit.
Finally, with the mainstream ebook industry being a potentially great source for accessible materials, conflict among different rights regimes and the interaction of digital rights management (DRM) with access to commercial ebooks is a real problem.
The initial DRM systems prevented access technology from accessing electronic books. Protection designed to prevent piracy also forestalled access. This is especially ironic given that disabled individuals should have been the ideal customers for ebooks!
Electronic book software vendors have responded to criticism about this by adding text-to-speech (TTS) capabilities to their ebook playing software. Unfortunately, it is still possible to turn off TTS access in the publishing process, thereby “soundproofing” the book. The software vendors have put in this ability at the request of the publishers, some of whom feel that allowing synthetic speech output might violate licenses to audio book publishers for audio versions of books. Thus, the right of a disabled person to read a purchased ebook gets vetoed by another rights concern. This conflict of rights is explored further in “The Soundproof Book .”
Unfortunately, there are other conflicts. Even though Chafee permits nonprofits to provide accessible books to people with disabilities without permission from the copyrights holders, the Digital Millennium Copyright Act has a prohibition against tampering with a digital rights management system. So, taking a commercial ebook and making it available in an accessible form is permitted under Chafee, but would require violating the DMCA. To our knowledge, no entity that supplies books to the disabled wants to deal with this issue, so electronic books are avoided unless the publisher or author gives permission (which was what Chafee was designed to address).
The Chafee Amendment has made significant progress in lowering the barriers to access to books for people with disabilities. The publishing industry has been supportive of this law change, and it has resulted in more access with less work by the publishers. The nonprofit and government agencies providing books under Chafee have gone to some lengths to treat copyrighted materials with care. Future efforts to provide additional access would do well if similar success were achieved!
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